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Free Speech and Political Conventions
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This summer, we have all witnessed the heavy hand of government intervening in the freedom of speech, as the behavior of the Secret Service at both the Republican convention in Cleveland and the Democratic convention in Philadelphia was troubling and unconstitutional.

Though the First Amendment was originally written only to restrain Congress (“Congress shall make no law … abridging the freedom of speech”), it is now uniformly interpreted to restrict all government in America from abridging the freedom of speech.

The reason this freedom is referred to as “the” freedom of speech is to reflect the belief of the Framers that the right to speak freely is pre-political. Stated differently, the freedom of speech is an integral aspect of our humanity. The government does not grant the freedom of speech; it is prohibited from interfering with it.

This is known as a negative right, in the sense that government is negated from interfering with a personal natural right. A natural right is one whose exercise does not require a government permission slip. Speech is the classic example.

The reasons for this are numerous, and not the least of them are our natural inclinations to think as we wish and to say what we think in pursuit of happiness and personal fulfillment. The practical reasons for this right are the needs of an informed electorate to challenge the government and demand transparency and accountability.

How did this play out during the hot weeks in Cleveland and Philadelphia? Not well.

Though the political parties are private entities with their own rules, they have invited their members and supporters to these quadrennial conventions for the purpose of engaging in public political conversations.

Yet if the Republicans wanted only pro-Trump sentiments to be expressed in the hall in Cleveland and if the Democrats wanted only pro-Clinton sentiments to be expressed in the hall in Philadelphia, since neither entity is the government, both are free to abridge the freedom of speech without legal consequences.

The consequences of such abridgments would presumably be political; those whose speech is silenced and those who oppose silencing public political speech would cast their votes against the silencers.

Yet this summer, the heavy hand of government was involved in silencing speech.

Here is the back story.

Because both Donald Trump and Hillary Clinton are entitled to Secret Service protection by virtue of a federal statute, the Secret Service either offered or demanded that it be the lead law enforcement agency providing general security — not just to Trump and Clinton but for everyone — at the conventions. In both cities, local officials went along with this.

The freedom of speech issues arose when the leadership of both conventions got so cozy with the Secret Service that they began using the federal agency as if it were private security, and they did so in such a manner as to preclude judicial intervention in aid of the freedom of speech.

Thus, when the Republican leadership wanted to quell a “Never Trump” boomlet on the convention floor, it had the Secret Service remove all reporters and producers — including some of my Fox News colleagues — from the floor. And when the Democratic leadership wanted to silence a pro-Bernie Sanders onslaught on the convention floor, it had the Secret Service confiscate Sanders placards from delegates on the floor.

The government removal of the press by command of the Republicans and the government removal of Sanders placards by command of the Democrats constitute not only an unheard-of commandeering of the government’s coercive powers for a private purpose but also the government’s abridging the freedom of speech. And all this was done quickly and without notice — and without an opportunity for redress to the courts.

The first duty of government is to preserve life, liberty and property. It is a strange and dangerous government that stifles freedom for some fleeting private purpose. It is equally strange that a freedom-loving people would tolerate this.

The whole purpose of the First Amendment and its underlying values is to encourage open, wide, robust, unbridled debate about the policies and the personnel of the government. The prevailing judicial interpretations of these values quite properly keep the government out of the business of assessing the value and propriety of public political speech.

The First Amendment demands that the test for acceptance or rejection of speech in the marketplace of ideas be made by individuals — uninfluenced, undeterred and unmolested by the government.

When the government stifles free choice in an area such as speech, it is no longer the people’s servant. It has become their master. Do you know anyone outside the government who wants that?

Copyright 2016 Andrew P. Napolitano. Distributed by Creators.com.

 
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  1. “It is a strange and dangerous government that stifles freedom for some fleeting private purpose.”

    I’d say welcome to Obama’s America, but I’m sure someone could dredge up some example to pin on Bush.

    “It is equally strange that a freedom-loving people would tolerate this.

    Is it really? We’ve been sacrificing our liberties for the sake of safety and comfort for over two hundred years. The last effective stand ended in 1865, and, per White v. Texas, it is now settled law that you take your chains as you find them, or rather, as they find you it seems.

    Read More
    • Replies: @anonymous
    Yes, remember this example during the Bush/Cheney regime? In a public space, and thus even more egregious:

    http://www.commondreams.org/news/2007/08/17/couple-arrested-bush-rally-settles-lawsuit-80000

    I also agree with your second point that people have been all too accepting of this stuff.
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  2. anonymous says:     Show CommentNext New Comment
    @The Alarmist

    "It is a strange and dangerous government that stifles freedom for some fleeting private purpose."
     
    I'd say welcome to Obama's America, but I'm sure someone could dredge up some example to pin on Bush.

    "It is equally strange that a freedom-loving people would tolerate this.
     
    Is it really? We've been sacrificing our liberties for the sake of safety and comfort for over two hundred years. The last effective stand ended in 1865, and, per White v. Texas, it is now settled law that you take your chains as you find them, or rather, as they find you it seems.

    Yes, remember this example during the Bush/Cheney regime? In a public space, and thus even more egregious:

    http://www.commondreams.org/news/2007/08/17/couple-arrested-bush-rally-settles-lawsuit-80000

    I also agree with your second point that people have been all too accepting of this stuff.

    Read More
  3. In the western world, the so-called “Freedom of Speech” applies only to the privileged 1% population.

    British Jewish Chronicle, country’s top Israeli propaganda website, reported on January 26, 2015, that a panel of European Jewish leaders headed by Israeli professor Yoram Dinstein (Tel Aviv University) and backed by several former EU head of states and governments have proposed that any criticism of Jews, Israel or Holocaust should be banned by the 28-member European Union being an old-fashioned antiemitism.

    The proposal entitled A European Framework National Statute for the Promotion of Tolerance, reads: “There is no need to be tolerant to the intolerant. This is especially important as far as freedom of expression is concerned: that freedom must not be abused to defame other groups.” Naturally this “Jewish tolerance” doesn’t apply to French Charlie Hebdo magazine or Danish newspaper Jyllands-Posten for publishing insulting cartoons of the Prophet Muhammad (pbuh)…..

    https://rehmat1.com/2015/01/29/freedom-of-speech-the-jewish-way/

    Read More
  4. Aren’t both RNC and DNC technically private conventions? Either way, it doesn’t matter.

    Free speech was never important. It is a western abstraction that serves no pragmatic purpose. In practice, it usually means the left dominates discourse, because they care more about shutting down people who offend them than freedom. This is why their definition of free speech is purely legalistic, i.e. only on government property. They don’t possess an overriding desire for general liberty. And if you want to compete, neither should you.

    The right thing to do would be to platform and weaponize nationalist speech while persecuting leftist speech, not default to neutrality. Doing so will eventually cause the left to suffer the loss of their speech, and suffering is usually how leftists learn.

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  5. The current ant i Trump hysteria both from DNC ,the Liberal media and on occasion form disgruntled Republicans are dangerously reminiscent of pro war anti Saddam anti Iraq hysteria of 2002 and also of the pro war collective madness against Libya and Syria .
    Why do we see madness repeated on such a grand scale ?

    The unanimous craziness celebrated with so much elan and poise by everybody from left to right can be seen in this great article- http://original.antiwar.com/george-szamuely/2016/07/27/donald-trump-vladimir-putin-potential-partners-not-allies-even-friends/

    The answer lies in the current custom of not punishing the lairs and not supporting those who speak the truths

    Read More
    • Replies: @anonymous
    Saddening as it is, thank you for highlighting the Szamuely article published at Antiwar.

    This Pravda-ization of American media is increasingly shameless in the context of Mr. Trump. Every single NYT, WaPo, AP, etc., article bangs the same drum. No one in their employ dares report the horrific record of Mrs. Clinton. The partiality will, one hopes, continue to drive thoughtful people to alternative media.

    At least some of these "journalists" must know better. Can you imagine how dispiriting it must be for them to pen such poop? That may be why some of the worst appears with multiple names in the byline: misery loves company.
  6. Secret Service confiscating Sanders signs? You don’t even have to read those hacked emails to get a picture of the way it is.

    Read More
  7. anonymous says:     Show CommentNext New Comment
    @bunga
    The current ant i Trump hysteria both from DNC ,the Liberal media and on occasion form disgruntled Republicans are dangerously reminiscent of pro war anti Saddam anti Iraq hysteria of 2002 and also of the pro war collective madness against Libya and Syria .
    Why do we see madness repeated on such a grand scale ?

    The unanimous craziness celebrated with so much elan and poise by everybody from left to right can be seen in this great article- http://original.antiwar.com/george-szamuely/2016/07/27/donald-trump-vladimir-putin-potential-partners-not-allies-even-friends/

    The answer lies in the current custom of not punishing the lairs and not supporting those who speak the truths

    Saddening as it is, thank you for highlighting the Szamuely article published at Antiwar.

    This Pravda-ization of American media is increasingly shameless in the context of Mr. Trump. Every single NYT, WaPo, AP, etc., article bangs the same drum. No one in their employ dares report the horrific record of Mrs. Clinton. The partiality will, one hopes, continue to drive thoughtful people to alternative media.

    At least some of these “journalists” must know better. Can you imagine how dispiriting it must be for them to pen such poop? That may be why some of the worst appears with multiple names in the byline: misery loves company.

    Read More
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